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The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws

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The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws Volume 64 Issue 5 Article 2 1-30-2020 The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws Harlan Grant Cohen Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the International Law Commons, and the Religion Law Commons Recommended Citation Harlan G. Cohen, The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws, 64 Vill. L. Rev. 665 (2020). Available at: https://digitalcommons.law.villanova.edu/vlr/vol64/iss5/2 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Cohen: The Primitive Lawyer Speaks!: Thoughts on the Concepts of Intern 2019] THE PRIMITIVE LAWYER SPEAKS!: THOUGHTS ON THE CONCEPTS OF INTERNATIONAL AND RABBINIC LAWS HARLAN GRANT COHEN* I. FINDING AND LOSING A MENTOR .L.A. Hart betrayed me, and I’ve never fully recovered. When I first Hstudied H.L.A. Hart’s The Concept of Law1 in law school, it seemed a revelation. With his move away from older accounts of law based on the commands of the sovereign backed by force, his embrace of a sociological account of law, and his emphasis on internalized senses of obligation, Hart seemed to capture my experience, my understanding of the law. With a budding interest in legal theory, Hart seemed a kindred spirit, a potential virtual mentor across time, space, and the pages of books. Growing up in an observant Jewish home and attending a Jewish day school, I was surrounded by legal questions: Had enough hours passed since eating a meat lunch to allow for a dairy snack?2 What time did the Sabbath start this week?3 Was it late enough on Saturday night to go buy the Sunday New York Times—could we see three stars in the sky?4 What exactly is “wahoo” or “sunfish”? Did they have fins and scales?5 These questions and their answers structured daily life. But I never thought hard (though others might) about the sovereign will behind them or the force that might enforce them. Such concerns were not really relevant. Those were the rules that we followed, period. As we got older, we learnt to interrogate those rules, to interpret and construct them, to argue about what they meant and how they should be applied. We were taught to mir- ror the rabbis of the Talmud by studying with partners, arguing out the law’s meaning, rather than simply memorizing and reciting the rules. In college and graduate school, I studied international history and international relations. I took particular interest in the cultures of foreign * Gabriel M. Wilner/UGA Foundation Professor in International Law, University of Georgia School of Law. Thank you to Chaim Saiman for the opportunity to engage with his brilliant book and the Villanova Law Review for including me in their annual symposium. Thank you to Monica Hakimi for empathizing. 1. H.L.A. HART, THE CONCEPT OF LAW (3d ed. 2012). 2. Somehow, the answer was always no. 3. Too soon! 4. Unclear, the third one seems to be moving; might be an airplane. 5. Answer: They do. See Wahoo, WIKIPEDIA, https://en.wikipedia.org/wiki/Wa hoo [https://perma.cc/NUZ6-H8KG] (last visited Nov. 24, 2019); see also Kosher Fish List, CHABAD, https://www.chabad.org/library/article_cdo/aid/82675/jew ish/Kosher-Fish-List.htm [https://perma.cc/ADU8-GGQX] (last visited Nov. 24, 2019); Redbreast Sunfish, WIKIPEDIA, https://en.wikipedia.org/wiki/Redbreast_sun fish [https://perma.cc/JW5Y-LSL6] (last visited Nov. 24, 2019). (665) Published by Villanova University Charles Widger School of Law Digital Repository, 2020 1 Villanova Law Review, Vol. 64, Iss. 5 [2020], Art. 2 666 VILLANOVA LAW REVIEW [Vol. 64: p. 665 policymaking and diplomacy, the ways ideas about foreign policy and in- ternational relations were shaped and reshaped over time through interac- tions and conversations. In law school, these interests, not surprisingly, drove me to international law, where the law became a key medium and language through which those interactions took place. Friends would tease that “international law’s not really law, right?” There’s no interna- tional sovereign; states just do what they want. “If the United States breaks the law,” they’d ask, “who’s going to stop it?” But the definitional question again seemed beside the point. What mattered was that policymakers, dip- lomats, international lawyers acted, spoke, pleaded, argued as if interna- tional law is law. Whatever they thought of it, it clearly structured their actions. Hart’s sociological account of the law seemed to capture all of this. Imagine my shock then (a few hours into my new virtual mentorship with the dead scholar) to see Hart’s description of the two types of law I knew best—religious law and international law: “Primitive law,” was the category he seemed to put both in.6 A slap in the face! He (the giant of legal philosophy) must be wrong, I (the arrogant law student) thought. What Hart’s betrayal confirmed though is something I already suspected, and which reading Chaim Saiman’s brilliant book on halakhah7 confirmed: there was, somehow, a deep connection between my experiences of these two very different types of law. I am hardly the first to see some link between international law and the Jewish experience. Others have noted that many of the most prominent international lawyers of the past century were Jewish. For some, like Hersch Lauterpact,8 Louis Henkin,9 and Prosper 6. It is admittedly a bit more complicated than that, though that is the impres- sion that stuck with me. Hart equates international law with primitive law rather than describing one as the other. See HART, supra note 1, at 3–4, 214. Hart doesn’t discuss religious law directly, but distinguishes law from religion and moral com- mands, and as will be explained infra text accompanying note 36, his critique of international law and primitive law applies equally to religious law. 7. CHAIM N. SAIMAN, HALAKHAH: THE RABBINIC IDEA OF LAW (2018). 8. Perhaps the most prominent public international lawyer of the mid-twenti- eth century, Lauterpacht advised the United States, United Kingdom, and Israeli governments, served on the International Court of Justice, and was a parent of the human rights revolution. See, e.g., OONA A. HATHAWAY & SCOTT J. SHAPIRO, THE INTERNATIONALISTS: HOW A RADICAL PLAN TO OUTLAW WAR REMADE THE WORLD 238–39, 246–47, 267–68, 298–305 (2017). See generally JAMES LOEFFLER, ROOTED COSMOPOLITANS: JEWS AND HUMAN RIGHTS IN THE TWENTIETH CENTURY (2018). 9. Among other things, Henkin was the driving force behind the Restatement (Third) of Foreign Relations Law of the United States. See, e.g., Lori Fisler Damrosch, In Memoriam: Louis Henkin (1917–2010), 105 AM. J. INT’L L. 287, 296–98 (2011). Hen- kin recounted that as a Supreme Court clerk, he secretly slept on Justice Frank- furter’s chambers sofa to avoid breaking the Sabbath by traveling to Saturday Justices’ Conferences. See J. Correspondent, Justices in Agreement—No Arguments on Yom Kippur, JEWISH TELEGRAPHIC AGENCY (Sept. 18, 2003), https://www.jweekly .com/2003/09/18/justices-in-agreement-no-arguments-on-yom-kippur/ [https:// perma.cc/A8LB-F67C]. Henkin’s son Daniel, as my music counselor at a Jewish camp, wrote the unforgettable paean to lunch trays, “Oh my gosh, eyn li magash.” https://digitalcommons.law.villanova.edu/vlr/vol64/iss5/2 2 Cohen: The Primitive Lawyer Speaks!: Thoughts on the Concepts of Intern 2019] PRIMITIVE LAWYER SPEAKS 667 Weil,10 Judaism was an important part of their identity. For others it was not. Nonetheless, the sheer number has led some scholars in quest to find some link between their background and an affinity for international law. Some scholars have sought to find the link in psychology, noting the at- traction of international law’s border-jumping cosmopolitanism for a peo- ple connected across borders and sometimes denied an identity within them. Others, like Weil11 and Shabtai Rosenne,12 saw more concrete legal links, plumbing the Jewish law sources used by early modern founders of international law. This essay seeks a different kind of connection, not a causal one, one that might explain one as the result of the other, but in- stead a conceptual or philosophical one. One of the signature strengths of Saiman’s book is that it does not try to normalize rabbinic law. Rather than treating the modern municipal legal systems we’re used to today as a benchmark against which to com- pare rabbinic law, or attempting to explain rabbinic law’s divergences from that model, Saiman seeks to understand halakhah’s internal logic in its own right—halakhah’s concept of the law, halakhah’s methods and me- dia of interpretation and application. In a similar vein, this essay does not seek to compare or equate rabbinic law and international law. Instead, this essay surveys some unique aspects of international law that find echoes in Saiman’s account or that Saiman’s account helps surface. The goal in the end is neither to draw a special link between the two, nor to defend those unique features, but instead to help deepen our understanding of how law can and does work in the world’s varied legal systems. II. INTERNATIONAL LAW’S SOCIOLOGY AND SOCIOLOGY OF INTERNATIONAL LAW The early modern writers credited as “the fathers” of international law (then, the law of nations), didn’t create the system; they found it.
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